An industrial relations lawyer has warned employers could find themselves on the “back foot” if they fail to consult with workers before rostering them on for a public holiday.
- The CFMMEU says the decision will have far-reaching implications
- BHP says it is considering appealing the decision
- A lawyer says many employers have failed to follow the holiday consultation process
On Tuesday the Federal Court ruled in favour of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) when it found BHP’s labour company OS MCAP breached the Fair Work Act by requiring employees to work on Christmas Day and Boxing Day in 2019.
BHP, through OS MCAP, required 85 employees to work a standard 12.5-hour shift on the public holidays at the Daunia Mine in central Queensland’s Bowen Basin without receiving any additional remuneration.
According to the judgement, employees were told only six workers were able to take leave per crew and for employees who did not already have approval, names were randomly selected to determine who would be rostered off.
Workers who were given the public holiday were then told they were unable to take Christmas off again for two years.
The court noted the company never asked its employees whether they were willing to work the public holidays and did not tell staff they had the right under the Fair Work Act to say no if the request was reasonable.
“Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable,” the judgement stated.
A BHP spokesperson said it was reviewing the decision and considering appeal options.
‘On the back foot’
Baker and McKenzie industrial relations and employment lawyer Michael Michalandos said while the decision did not change the Fair Work Act, it reiterated that employers must actually ask and consider a worker’s wishes when rostering for public holidays.
“I’ve got to say, to date a lot of employers haven’t gone through the process of making those types of requests to employees,” he said.
“The court made it quite clear that employers have to notify employees that they do have the option to either accept or reject a request to work on a public holiday.”
Mr Michalandos said many employers will be “on the back foot” in the lead-up to Easter because they would not have consulted with their workers.
He said whether a request to work on a public holiday was fair could depend on the sector — for example, if the worker was part of an essential emergency service.
Mr Michalandos said operational requirements, whether an employee was being compensated for working on a public holiday, the personal circumstances of the worker and how much notice the employer had given were also considered.
In its statement, BHP said its OS MCAP team provided permanent jobs to more than 4,000 people across the company’s Australian mining operations.
“In addition to being permanent, well-paid positions above relevant awards, these roles come with a package of additional benefits including annual, sick and parental leave, annual performance bonuses and access to BHP’s employee share scheme,” a spokesperson said.
The CFMMEU lodged the appeal in the Federal Court after a primary court ruled in favour of BHP.
Queensland president Steve Smyth said the ruling would have broader implications.
“It actually impacts across every sector because it’s actually the National Employment Standards,” he said.
“If you have an enterprise agreement or a contract in place, that cannot override an NES provision of the act.
“So whether it’s retail, mining, construction — it’s a massive decision.
“Obviously [there is] a 28-day appeal mechanism there, but this means, even coming into Easter, employers now have to ask their employees — do they want to work?”
Mr Smyth said employers would have to demonstrate they had reached an agreement with their employees to work on public holidays.
“Christmas Day and Boxing Day is two days that people want to have off with their family,” he said.
“This will certainly go a long way to helping relieve that for those individuals.
“We’re working through the detail to make sure that we get the right mechanism in place to protect members and make sure that this decision is upheld and the balance is back to the workers.”